The respondent/complainant J&K State Financial Corporation has filed a complaint for commission of offence under section 138 of the Negotiable Instruments Act against the petitioner/accused before the Court of learned City Judge, Judicial Magistrate Ist Class, Jammu on the allegations that the petitioner/accused had set up an Industrial Unit at Kaluchak, Jammu after having been financed by the complainant/Corporation. The accused/petitioner was to re-pay the installments due to the complainant corporation and in regard thereto issued a cheque No. 675977 dated 7-12-2002 for an amount of Rs 80,000/- in favour of the complainant/State Financial Corporation. The complainant deposited the said cheque drawn on the Citizens Cooperative Bank Ltd, Gangyal, Jammu on 9-12-2002 through its Banker, the Jammu & Kashmir Bank Ltd. The cheque was dis-honoured and returned with a memo to the complainant/Corporation. The complainant issued a notice dated 22-12-2002 by registered post for demanding the payment of the cheque within a period of 15 days from the date of receipt of notice, but the accused did not take any steps to liquidate the amount of Rs 80,000/- within the stipulated period of 15 days. So he has committed the offence under section 138 of the Negotiable Instruments Act. After the complaint being filed, the learned trial Court vide its order dated 7-2-2003 took the cognizance against the accused/petitioner and issued the process. The accused/petitioner appeared and filed an application for dropping the proceedings. The learned Magistrate vide its order dated 8-5-2004 dismissed the application. The accused/petitioner filed a criminal revision petition in the court of learned Ist Addl Sessions Judge, Jammu which also met the same fate. Hence the accused/petitioner has filed the present petition for invoking section 561-A Cr.P.C for seeking quashment of the complaint and the order dated 7-2-2003 passed by the Magistrate for taking cognizance against him.

2. I have heard the learned counsel for the parties and perused the record.

3. The first contention of the learned counsel for the petitioner Mr. Mishra is that the complaint is not maintainable as in the complaint it has not been stated as to when the notice issued was served upon the accused/petitioner and on which date the period of 15 days expired so as to give the complainant/respondent a cause of action against the accused.

4. Indisputably to constitute the offence under section 138 of the Negotiable Instruments Act it is necessary for the complainant to prove that the accused has issued the cheque which has been dis-honoured and after the dis-honoring of the cheque a notice under clause (b) Proviso to Section has been issued in writing to the drawer of the cheque within fifteen days of the receipt of information by him from the Bank regarding the return of the cheque as unpaid. As per the allegations of the complainant the cheque was returned as un-paid on 11-12-2002 so he issued the notice dated 12-12-2002 under registered post A/D for demanding the payment of an amount of Rs 80,000/- which is the amount of the cheque. The requirement of clause (b) thus prima facie stand satisfied in the instant case. In terms of clause (c) of Proviso to section 138 the cause of action for filing the complaint for commission of the offence under section 138 against the accused would have been accrued after the expiry of 15 days from the receipt of the said notice. The date on which the notice issued under registered cover was received by the accused/petitioner has not been mentioned in the complaint, so the question is whether the non-mention of that date in the complaint is fatal to the maintainability of the complaint and for that matter whether that question can be gone into by this Court while exercising jurisdiction under section 561-A Cr.P.C.

5. In my considered opinion non-mention of the date of receipt of the notice in the complaint is not material. In the complaint the complainant is requ

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